Preview
FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JORGE A. BORDEN,
Plaintiff, AFFIRMATION IN SUPPORT
-against-
Index No. 521083/2017
THOMAS COLICCHIO AND CPM BUILDERS, INC.
Hon. Kathy J. King, J.S.C.
Defendants.
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.
CAROL G. MOROKOFF, an attorney duly admitted to practice law before the court of
the State of New York, affirms the following to be true under the penalties for perjury:
1. I am associated with the firm Smith Mazure, attorneys representing both Defendants
in the above titled matter. I am fully familiar with the facts and circumstances herein through a
review of the file maintained in this office, including prior decisions of this Court.
2. I make this affirmation in support of the instant motion for an Order:
A. Pursuant to CPLR §3212, dismissing all of the remaining causes of action as
against Defendant Thomas Colicchio because no material, triable issue of fact
exists demonstrating any negligence on his part and dismissal of all claims is
warranted as a matter of law;
B. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of common law
negligence and violation of §200 of the Labor Law as against Defendant CPM
Builders, Inc. because no material, triable issue of fact exists demonstrating
negligence on its part and dismissal of said claims is warranted as a matter of
law;
C. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of common law
negligence and violation of §240 of the Labor Law as against defendant CPM
Builders, Inc. because there is no prima facie proof of negligence on the part
of Defendant, CPM Builders, Inc., and dismissal of said claims is warranted as
a matter of law;
D. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of violation of §241(6)
of the Labor Law predicated upon violations of §§23-1.5, 1.7, 1.15, 1.17, 1.21,
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and 9.6 of the Industrial Code as against defendant CPM Builders, Inc.,
because no material, triable issue of fact exists demonstrating these sections of
the Industrial Code are applicable in the instant matter; and
E. Granting such other, further and different relief as to the court may deem just,
proper, and equitable.
3. In brief, Plaintiff Jorge A. Borden claims he was injured on October 16, 2017, while
working as a helper for a non-party entity, Premier Drywall Group, Inc., at Defendant Thomas
Colicchio’s one-family residence located at 366 Adelphi Street (hereinafter referred to as the
“Premises”).
4. As will be demonstrated, no liability for Plaintiff’s injuries lies with either Defendant.
I. PROCEDURAL HISTORY
5. Plaintiff commenced this action via filing of a Summons and Complaint on or about
October 30, 2017 (see a copy annexed hereto as Exhibit “A”). Issue was joined via filing of a
Verified Answer on behalf of both Defendants on or about February 6, 2018 (see a copy annexed
hereto as Exhibit “B”).
6. Thereafter, discovery was conducted. Documents exchanged and testimony given are
annexed hereto as follows:
* Plaintiff’s Verified Bill of Particulars - Exhibit “C”.
* Plaintiff’s Deposition Transcript, February 6, 2019 – Exhibit “D”.
* Plaintiff’s Deposition Transcript, March 25, 2019 – Exhibit “E”.
* Plaintiff’s Deposition Transcript, August 9, 2019 – Exhibit “F”.
* Defendant Thomas Colicchio Deposition Transcript – Exhibit “G”.
* Defendant CPM Builders Inc. Deposition Transcript – Exhibit “H”.
* Affidavit of Defendant Thomas Colicchio – Exhibit “I”.
All Plaintiff’s transcripts are filed with Notices transmitting same to Plaintiff’s counsel
for execution by the Plaintiff.
7. Defendant Thomas Colicchio, owner of the single family residence which was the site
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of Plaintiff’s accident, made a motion for summary judgment returnable December 17, 2018,
seeking an Order granting summary judgment in his favor dismissing all claims based upon
Plaintiff’s failure to demonstrate any negligence on his part and based upon the facts that the
premises was a one family house and he had absolutely no control over the work performed by
the Plaintiff or his employer.
8. Defendant Colicchio’s motion was granted to the extent that all claims made against
him pursuant to Labor Law §§240 and 241(6) were dismissed. He was granted leave to renew his
motion to dismiss all claims against him pursuant to Labor Law §200 upon completion of
discovery (see a copy of the order of the Hon. Kathy J. King entered February 26, 2019 annexed
hereto as Exhibit “J”).
9. Plaintiff served his Note of Issue on January 27, 2020 (see a copy annexed hereto as
Exhibit “K”). Normally the rules of this court would have required filing this motion on or
before March 27, 2020. However, pursuant to Administrative Order 71/20 of the Chief
Administrative Judge, dated March 19, 2020, “dispositive motion deadlines” were deferred.
Further, pursuant to Administrative Order 78/20 of the Chief Administrative Judge, dated March
22, 2020, all efiling of non-essential papers was forbidden. Thus, the instant motion is timely as
it is filed as soon as allowed after efiling of motions was allowed..
II. FACTS
DEPOSITIONS OF PLAINTIFF
10. On October 16, 2017, Plaintiff was employed by Premier Drywall Group LLC.
(see Exhibit “C”, answer 5). He had worked with the company for a year, beginning in 2016
(see Exhibit “D”, page 41, line 12). He had been assigned to work at the Premises for
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approximately two months prior to the date of his accident (see Exhibit “E”, PP. 180-181, L. 21-
13).
11. Plaintiff’s job was to assist in removing and replacing beams supporting the floors on
the second and third floors (see Exhibit “E”, P. 192, L. 12-14). To do so required removing
plywood flooring (see Exhibit “E”, P. 193, L. 14-17), which was done by using hammers, drills,
a Sawzall and pry bars (see Exhibit “E”, P. 199).
12. The initial floor for which the beams were removed and replaced was the third floor
(see Exhibit “E”, P. 191, L. 6-15). To remove and replace the beams required, in part, standing
on a scaffold or ladder which was located on the second floor (see Exhibit “E”, PP. 226-227, L.
23-25).
13. Removing and replacing the plywood flooring, and the beams underneath, on the
third floor took approximately one month (see Exhibit “E”, P. 246, L. 20-25). Plaintiff’s crew
was then instructed to repeat the process on the second floor (see Exhibit “E”, P. 263, L. 3-8).
The work continued one to two weeks prior to Plaintiff’s accident (see Exhibit “E”, P. 272, L.
9-14).
14. While some of the plywood which covered the beams on the second floor had been
removed, paths were left for the workers to walk on (see Exhibit “E”, P. 295, L. 17-24 and P.
296, L. 13-19). Further, the workers would screw into the floor additional, smaller pieces of
plywood, moving to whichever area the workers needed (see Exhibit “F”, P. 392, L. 19-23).
15. Part of Plaintiff’s job was to receive sheets of plywood for use in replacing the old,
removed plywood. The new sheets were received through a second floor window, hoisted by a
machine on the outside of the building (see Exhibit “E”, P. 277, L. 16-21). Two workers were
needed to receive the plywood; one grabbed one end of a sheet, another the other end, and both
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guided the piece of wood through the window (see Exhibit “E”, P. 290, L. 11-18). Both had
enough room to stand on flooring which had been left in place (“There was obviously some floor
that we were standing on.” See Exhibit “E”, P. 276, L. 13-21).
16. The morning of Plaintiff’s accident, more than twenty sheets of plywood were
received in this way (see Exhibit “E”, P. 298, L. 20). The workers took a lunch break and, when
they returned, Plaintiff was the first one to walk up the stairs to the second floor. He looked and
saw he had a clear path to walk on plywood to retrieve a circular saw (see Exhibit “E”, P. 321,
L. 7-12). When he picked up the circular saw, he looked down and saw plywood (Exhibit “E”,
P. 325, L. 2 – 6).
17. At that point, the Plaintiff fell from the second floor to the first floor. He remembers
nothing of the circumstances – “The only thing I know is that I fell” (see Exhibit “E”, P. 328, L.
21). He did not hear anything (see Exhibit “E”, P. 326, L. 15). He does not remember beginning
to fall (see Exhibit “E”, P. 326, L. 21- 24).
18. He later decided that “I stepped on an old piece of plywood and the piece moved and
I fell” (see Exhibit “F”, PP. 387-388, L. 25-2). He does not remember when that particular piece
of plywood was put in place (see Exhibit “F”, P. 392, L. 11-18). He knows that it was one of the
additional pieces of plywood, put down as the workers moved about the room (see Exhibit “F”,
P. 392, L. 19-23). It was supposed to be screwed into a beam (see Exhibit “F”, P. 394, L. 14-
20). Indeed, the Plaintiff thought it was screwed into a beam (see Exhibit “F”, P. 401, L. 18-24).
AFFIDAVIT OF THOMAS COLICCHIO
19. In support of his initial motion for summary judgment, Defendant Thomas Colicchio
executed an affidavit sworn to September 5, 2018 (see Exhibit “I”). In this affidavit, Mr.
Colicchio established the following:
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He is the owner of the one-family residence located at 366 Adelphi Street, Brooklyn,
New York (Par. 5)
Mr. Colicchio retained CPM Builders, Inc. as the general contractor to perform
renovation work at the Premises. (See “I” at ¶ 5).
CPM Builders, Inc. then retained plaintiff’s employer, Premier Drywall Group, Inc.,
as a subcontractor. (See “I” at ¶ 5).
Mr. Colicchio did not personally perform any work at the subject project located at
the Premises. (See “I” at ¶ 6).
Mr. Colicchio did not have any materials, supplies, tools, or equipment at the subject
project located at the Premises nor did he provide any materials, supplies, tools, or
equipment at the subject project located at the Premises. (See “I” at ¶¶ 7 and 8).
Mr. Colicchio was not the General Contractor at the subject project located at the
Premises. (See “I” at ¶ 9).
Mr. Colicchio was not the Construction Manager at the subject project located at the
Premises. (See “I” at ¶ 10).
Mr. Colicchio was not the Site Safety Manager at the subject project located at the
Premises. (See “I” at ¶ 11).
Plaintiff was not and has never been employee or in any way affiliated with Thomas
Colicchio. (See “I” at ¶ 12).
Mr. Colicchio never supervised, directed, or controlled the plaintiff at the subject
project located at the Premises. (See “I” at ¶ 13).
Mr. Colicchio did not provide the plaintiff with any materials, supplies, tools, or
equipment at the subject project located at the Premises. (See “I” at ¶ 14).
As to the plaintiff’s accident, Mr. Colicchio had no knowledge of same and the first
notice of the alleged accident was the service of the instant lawsuit. (See “I” at ¶ 15).
DEPOSITION TESTIMONY OF CPM BUILDERS INC.
20. Thomas Kilcommons, project manager for defendant CPM Builders, Inc. was
deposed on October 24, 2019. He testified that CPM Builders Inc., the general contractor for the
project, which retained plaintiff’s employer as a subcontractor, provided no direction as to how
the Premier Drywall Group workers should do their jobs. His sole comment on the matter came
at Pages 49 - 50 his testimony (annexed hereto as Exhibit “H”), to wit:
Q: Did CPM Builders provide any direction or supervision of
Premier Drywall or their employees on how they performed
their day-to-day work at the job site”
A: Only in the capacity of making sure that they are following
the drawings that were given, so perhaps they framed
something incorrectly, in which case we would have to
describe how correctly to frame it, that’s a possibility.
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Q: Did Luis ever direct any employees of Premier on how they
should perform their individual actions or activities?
A: No.
Q: Did CPM Builders provide any tools or equipment to
Premier to permit Premier to perform their work at this
particular job site?
A: No. With the exception of perhaps the scaffold that we
would have shared at some point but I don’t know ifthat
was the case.
III. ARGUMENT
BOTH DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT
DISMISSING PLAINTIFF’S LABOR LAW §200 CAUSE OF ACTION AND ANY
COMMON LAW NEGLIGENCE CAUSES OF ACTION
21. “[S]ection 200 of the Labor Law is a codification of the common-law duty imposed
upon an owner or general contractor to maintain a safe construction site. (Citations omitted) It is
well settled that an implicit precondition to this duty is that the party charged with that
responsibility ‘have the authority to control the activity bringing about the injury to enable itor
correct an unsafe condition. (citations omitted).’” See Rizzuto v. L.A. Wenger Construction Co.,
91 N.Y.2d 343, 351, 670 N.Y.S.2d 816, 820 (1998).
22. In the first instance – did either defendant have the authority to control the activity
bringing about the injury to enable it - Plaintiff’s claim fails against both defendants because
neither had the authority to control his activity. He was a carpenter’s helper – his actions were
controlled by the carpenter, Marlin Marenco (see Exhibit “D”, P. 69, Lines 13-17). The affidavit
of Thomas Colicchio, Exhibit “I” hereto, establishes in evidentiary form that he never
controlled the means by which Plaintiff performed his job. Similarly, the deposition testimony of
Thomas Kilcommons establishes that Defendant CPM Builders had no authority to direct
Plaintiff’s actions.
23. Mr. Kilcommons’ testimony that CPM Builders could correct Premier Drywall’s
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actions if they deviated from a building plan is not enough to impose liability. "General
supervisory authority is insufficient to constitute supervisory control; it must be demonstrated
that the [owner or] contractor controlled the manner in which the plaintiff performed his or her
work, i.e., how the injury-producing work was performed." See Hughes v Tishman Constr.
Corp., 40 AD3d 305, 306 [1st Dept. 2007]).
24. Further, the second half of the test – correcting an unsafe condition – requires notice
that the owner or contractor knew of the condition. “When a premises condition is at issue, a
property owner is liable under Labor Law §200 when the owner created the dangerous condition
causing the injury or when the owner failed to remedy a dangerous or defective condition of
which she or he had actual or constructive notice (citations omitted).” See Chowdhury v.
Rodriguez, 57 A.D.3d 121, 128 (2nd Dept. 2008), 867 N.Y.S.2d 123, 129.
25. The testimony of the Plaintiff is that his injury was caused because “I stepped on an
old piece of plywood and the piece moved and I fell” (see Exhibit “F”, PP. 387-388, L. 25-2).
He does not remember when that particular piece of plywood was put in place (see Exhibit “F”,
P. 392, L. 11-18). He knows that it was one of the additional pieces of plywood, put down as the
workers moved about the room (see Exhibit “F”, P. 392, L. 19-23). It was supposed to be
screwed into a beam (see Exhibit “F”, P. 394, L. 14-20). Indeed, the Plaintiff thought itwas
screwed into a beam (see Exhibit “F”, P. 401, L. 18-24).
26. No evidence has been produced by the Plaintiff that either Thomas Colicchio or CPM
Builders had any idea that Premier Drywall’s workers were moving small pieces of plywood
around the area in which they were working, screwing same into beams, let alone that – on the
date of the accident – one of those small pieces was not correctly attached, thus causing
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Plaintiff’s accident. Indeed, neither defendant could possibly know this if even the Plaintiff
looked at the area where he was going to walk and thought it was perfectly safe.
27. In an analogous situation, the defendants were awarded summary judgment after a
worker fell from a scaffold, having slipped on a previously unobserved substance. In the case
Molyneaux v. City of New York, 28 A.D.3d 438, 440, 813 N.Y.S.2d 729 (2nd Dept. 2008) the
court held that, to be liable, “Moreover, the owner or contractor must have created or had actual
or constructive notice of the defective condition which caused the accident (see Paladino v.
Society of N.Y. Hosp., supra at 345; Maggi v. Innovax Methods Group Co., 250 AD2d 576, 578
[1998]). The moving defendants were properly awarded summary judgment on the plaintiffs'
common-law negligence and Labor Law § 200 causes of action, since the evidence indisputably
showed that the unidentified substance had never been observed before the occurrence of the
plaintiff's accident. Thus, the moving defendants could not possibly have had notice of the cause
of the accident, nor could they be found responsible for creation of the dangerous condition.”
28. The Plaintiff testified that neither Thomas Colicchio nor an employee of CPM
Builders was responsible for attaching the smaller piece of plywood in place. It was one of his
co-workers who did that (see Exhibit “F”, P. 393, L. 23-25). This testimony establishes that
neither Defendant caused the dangerous condition involved in the instant claim.
29. Further, since Plaintiff does not know when the wood was moved, actual notice
cannot be established.
30. Constructive notice cannot be established, because even had both Defendants been
standing on the second floor, looking at the area where Plaintiff was injured, they would have
seen the same thing Plaintiff did when he looked. If he thought the piece of wood in question
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was properly attached, the Defendants submit that it is impossible for them to know that itwas
not and thus a dangerous condition existed.
31. Therefore, Plaintiff’s claims against both Defendants pursuant to common law and
Labor Law §200 must be dismissed.
IV ARGUMENT
DEFENDANT CPM BUILDERS, INC. IS ENTITLED TO SUMMARY
JUDGMENT AS TO CLAIMS BASED UPON THE
ALLEGED VIOLATION OF LABOR LAW §240
32. In its Bill of Particulars, Plaintiff claims liability pursuant to violation of Labor Law
§240 subsections (1), (2) and (3) (see Exhibit “C”. answer 17).
33. Labor Law §240(1) requires appropriate protection to workers using “scaffolding,
hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, or ropes”. The injuries
claimed by the Plaintiff herein are not the result of the use of any such equipment.
34. Labor Law §240(2) applies to requirements for the use of scaffolding or staging. The
injuries claimed by the Plaintiff herein are not the result of the use of scaffolding or staging.
35. Labor Law §240(3) applies to requirement that a scaffold be able to bear four times
the maximum weight allowed. The injuries claimed by the Plaintiff herein are not the result of
the use of scaffolding.
36. "Labor Law § 240 (1) was designed to prevent those types of accidents in which the
scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured
worker from harm directly flowing from the application of the force of gravity to an object or
person" (Ross, 81 NY2d at 501).” Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604,
895 N.Y.S.2d 279, 281-282.
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37. The cynical might note that itwas fall which caused the Plaintiff’s injuries in this
case, but the fact is no scaffold, hoist, stay, or ladder was involved. Plaintiff was walking across
a flat floor. The protections of Labor Law § 240(1) do not encompass any and all perils that may
be connected in some tangential way with the effects of gravity. Ross v. Curtis-Palmer Hydro-
Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993)
38. In Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 7 N.Y.S.3d 263,
(2015), the worker was installing insulation in the ceilings of a newly constructed apartment
building. To complete the task, the worker wore stilts that elevated his feet above the concrete
floor. The accident occurred when he stepped forward with one foot, while swinging a hammer
above his head to affix insulation between the ceiling rafters, and slipped on a thin patch of ice.
In holding that Labor Law § 240(1) did not apply, the Court of Appeals found that the accident
resulted from a slip on ice, which was a separate hazard unrelated to the elevation risk that
necessitated the provision of a safety device in the first instance. Moreover, the accident did not
arise out of a difference in elevation.
39. In the instant case, Plaintiff walked across a level floor. There was no height
differential. Assuming arguendo that his accident happened the way he claims, the problem was
not an elevation related hazard. It was a separate risk based on the fact that one of Plaintiff’s
coworkers failed to do his job correctly.
40. In Charles v. City of New York, 227 A.D.2d 429, 642 N.Y.S.2d 690 (2d Dept
1996), the worker was injured when he tripped on some debris and contorted his body in order to
avoid falling off an eighth-floor ledge. In holding that Labor Law §240(1) did not apply, the
Appellate Division, Second Department found that accident was not the result of an elevation-
related hazard, but rather, resulted from a trip and fall on accumulated debris. The plaintiff in
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Charles, supra, was on a ledge eight floors above the ground. This is far higher than the Plaintiff
in the instant case. As it was a ledge, there was no floor covering to protect the worker. Floor
covering was in place in the instant action. Clearly there was an inherent risk in the Charles,
supra, to being near a ledge eight stories off the ground. Still, the court did not find a height
related risk – it found a trip and fall risk and dismissed the claim based on Labor Law §240(1).
41. Therefore, the cause of action against CPM Builders, Inc. based upon Labor Law
§240(1) must be dismissed.
V ARGUMENT
DEFENDANT CPM BUILDERS, INC. IS ENTITLED
TO SUMMARY JUDGMENT AS TO CLAIMS BASED UPON
THE ALLEGED VIOLATION OF SECTION 241(6)
42. In his complaint, the Plaintiff claims violation of Labor Law §241(6)(see
Exhibit “A”). However, citation to Labor Law §241(6) in and of itself is insufficient – violations
of provisions of the Industrial Code must be made as well. See Gonzalez v. Perkan Concrete
Corp., 110 A.D.3d 955, 957, 975 N.Y.S.2d 65, 68 (2nd Dept. 2013).
43. In its Verified Bill of Particulars, the Plaintiff cites violations of Industrial
Codes as follows: 23 – 1.5 (a) and (c)
23 – 1.7 (b) (d) (f)
23 – 1.15
23 – 1.16 (a) – (f)
23 – 1.17 (a) – (e)
23 - 1.21(b) and e)
23 - 1.24
23 - 3.2
23 - 3.3 (c) (g) (j)
23 - 5.1
23 - 5.3
23 - 5.9
23 - 9.6
44. Additionally, Plaintiff cites violations of OSHA regulations 1926.451,
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1926.452, 1926.501, 1926.502, 1926.503, and 1926.850(a)(h)(j).
45. For the purposes of this action, citation to the OSHA regulations must be
disregarded.
“Violations of the Occupational Safety and Health Administration regulations do not form the
basis for liability under Labor Law § 241 (6) (Schiulaz v Arnell Constr. Corp., 261 AD2d 247,
248, 690 NYS2d 226 [1st Dept 1999]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d
311, 313, 656 NYS2d 295 [2d Dept 1997]).”
See Albericci v. Port Auth. of N.Y. & N.J., 55 Misc. 3d 946, 962, 49 N.Y.S.3d 849, 863 (Sup.Ct.
Bronx Co. 2017).
46. With respect to the citation to Industrial Codes, the Plaintiff must demonstrate
that each is applicable to the facts at hand. If he cannot do so, the code section cited cannot
support a claim under Labor Law §241(6). However, “As to Industrial Code § 23-1.5,
(defendant) correctly argues that this provision is not sufficiently specific to form a basis for
liability under Labor Law § 241(6) (see Opalinski v City of New York, 164 AD3d 1354, 1355, 84
N.Y.S.3d 499 [2d Dept 2018]; Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 937,
914 N.Y.S.2d 203 [2d Dept 2010]).” Wirkus v Cedry LLC, 2019 N.Y. Misc. LEXIS 135, *22-23
(Sup.Ct. Kings Co. 2019).
47. With respect to Industrial Code §23-1.7(b), the defense submits the requirement
“Every hazardous opening into which a person may step or fall shall be guarded by a substantial
cover fastened in place or by a safety railing constructed and installed in compliance with this
Part (rule)”.does not apply to a temporary hole created by the Plaintiff and his coworkers as an
integral part of their work.
48. “[T]he defendants and third-party defendants place reliance on the fact that
liability will not be imposed where the item causing the injury was an integral part of the floor
being constructed, an integral part of the work being performed, or itself constituted a protective
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device (see, Sharrow v Dick Corp., 233 AD2d 858; Kulis v Xerox Corp., supra; Adams v Glass
Fab, 212 AD2d 972)….”Lenard v. 1251 Ams. Assocs., 241 A.D.2d 391, 393, 660 N.Y.S.2d
416, 417-418 (1st Dept. 1997).
49. In Harvey v. Morse Diesel Int’l, 299 A.D.2d 451, 750 N.Y.S.2d 117 (2d Dept.
2002), an electrician tripped on a six-inch piece of electrical cable which was on the floor below
the ladder she was descending. As part of her job, the worker was required to pull certain cable
through a ceiling, cut it and affix it. The accident occurred when the worker was descending a
ladder after installing the cable. She tripped over a six-inch piece of cable, the type with which
she was working. In holding that § 23-1.7 did not apply, the Appellate Division, Second
Department stated that the object on which the worker tripped was an integral part of the work
she was performing.
50. Plaintiff may well argue that the case law cited above regarding what constitutes
the “integral part” exception specifically refers to Industrial Code §§23-1.7(e)(1) and (2), which
require that debris be cleared so as not to constitute a tripping hazard. However, the Defendant
herein suggests this is far too narrow a definition of what constitutes “integral.”
“Indeed, Shields v General Elec. Co., 3 AD3d 715, 771 N.Y.S.2d 249 (2004) is instructive.
There, the Court noted that ‘work that is an 'integral part of the construction contract' and is
'necessitated by and incidental, to the construction . . . and involve[s] [*18] materials being
readied for use in connection therewith' is construction work" (id. at 717, quoting Brogan v
International Bus. Machs. Corp., 157 AD2d 76, 79, 555 N.Y.S.2d 895 [1990] ["(T)he lack of
proximity between the place of accident and the precise location of construction is not
dispositive against Labor Law liability for injuries to workers handling construction materials
and equipment"]; see also Karwowski [**13] v 1407 Broadway Real Estate, LLC, 160 A.D.3d
82, 87, 73 N.Y.S.3d 30 [2018]; Danielewski v. Kenyon Realty Co., LLC, 2 A.D.3d 666, 667, 770
N.Y.S.2d 97 [2003]). Thus, contrary to defendants'. contention, the process of receiving a
delivery of necessary materials for his work and the location where such delivery took place at
the time of plaintiff's injury constituted an integral part of the construction project and, therefore,
falls within the ambit of section 241 (6) (see Lucas v KD Dev. Constr. Corp., 300 AD2d 634,
752 N.Y.S.2d 718 [2002]; see also Shields, 3 AD3d at 717; Brogan, 157 AD2d at 79).”
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Impoco v Marjam Supply Co.Inc., 2019 N.Y. Misc. LEXIS 915,
51. By the Plaintiff’s own testimony, he and his co-workers moved two or three
smaller pieces of plywood throughout the second floor so as to be able to move about safely
while replacing the larger pieces of plywood. Replacing the larger pieces of plywood was
absolutely an integral part of the job. Doing so required being above the joists and beams in
question (as opposed to attempting the job from the first floor). Any suggestion that perhaps the
Plaintiff could have done so by hanging from the third floor or via an aerial bucket somehow
maneuvered through a window is nothing more than speculation. Further, it is not what the
Plaintiff and co-workers chose to do.
52. Therefore – replacing the plywood was an integral part of Plaintiff’s job. He could
not do so without standing on other plywood. His claimed source of injury was a piece of
plywood integral to performing the replacement. Therefore, since “liability will not be imposed
where the item causing the injury was an integral part of the floor being constructed, an integral
part of the work being performed”(see Lenard v. 1251 Ams. Assocs. supra) Industrial Code
§23-1.7(b) cannot serve as a foundation for a Labor Law §241(6) claim and must be dismissed.
53. With respect to Industrial Code §23-1.7(d), the court in Wirkus v. Cedry LLC.,
supra, applied a very fact specific analysis. It noted that Industrial Code §23-1.7(d) applied to
slippery surfaces, thus slip and fall cases. The plaintiff in Wirkus tripped, not slipped.
“Accordingly, the Court finds that Cedry has demonstrated that section 23-1.7(d) is not
applicable to the facts herein and, thus, cannot support plaintiff's Labor Law § 241(6) claim.”
54. In the instant case, the Plaintiff did not slip. For the purposes of this
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motion, the Defendants note Plaintiff’s claim that he stepped on a piece of plywood which was
not slippery in and of itself. Thus, Industrial Code §23-1.7(d) should not apply and should be
dismissed as a foundation for a Labor Law §241(6) claim.
55. Industrial Code §23-1.7(f) applies to “Vertical passage. Stairways, ramps or
runways.” It does not apply to the instant case because Plaintiff was not injured on a stairway,
ramp or runway. Thus, it should be dismissed as a ground upon which Labor Law §241(6) can be
based.
56. Industrial Code §23-1.15 is simply entitled “Safety Railing.” Before describing
the safety railing, it states “Whenever required by this Part (rule)” and goes on to describe how
the safety railing should appear. The Defendant contends that in a vacuum, without association to
the other section which would require it, this section of the code is too vague, should not apply
and should be dismissed as a foundation for a Labor Law §241(6) claim.
57. Industrial Code §23-1.16 is entitled “Safety belts, harnesses, tail lines and
lifelines.” No instruction is given as to when such devices should be used. The Defendant
contends that in a vacuum, without association to the other section which would require it, this
section of the code is too vague, should not apply and should be dismissed as a foundation for a
Labor Law §241(6) claim.
58. Industrial Code §23-1.17 is simply entitled “Life Nets.” No instruction is given
as to when such devices should
Preview
FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X JORGE A. BORDEN, Plaintiff, AFFIRMATION IN SUPPORT -against- Index No. 521083/2017 THOMAS COLICCHIO AND CPM BUILDERS, INC. Hon. Kathy J. King, J.S.C. Defendants. ----------------------------------------------------------------------X . CAROL G. MOROKOFF, an attorney duly admitted to practice law before the court of the State of New York, affirms the following to be true under the penalties for perjury: 1. I am associated with the firm Smith Mazure, attorneys representing both Defendants in the above titled matter. I am fully familiar with the facts and circumstances herein through a review of the file maintained in this office, including prior decisions of this Court. 2. I make this affirmation in support of the instant motion for an Order: A. Pursuant to CPLR §3212, dismissing all of the remaining causes of action as against Defendant Thomas Colicchio because no material, triable issue of fact exists demonstrating any negligence on his part and dismissal of all claims is warranted as a matter of law; B. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of common law negligence and violation of §200 of the Labor Law as against Defendant CPM Builders, Inc. because no material, triable issue of fact exists demonstrating negligence on its part and dismissal of said claims is warranted as a matter of law; C. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of common law negligence and violation of §240 of the Labor Law as against defendant CPM Builders, Inc. because there is no prima facie proof of negligence on the part of Defendant, CPM Builders, Inc., and dismissal of said claims is warranted as a matter of law; D. Pursuant to CPLR §3212, dismissing Plaintiff’s claims of violation of §241(6) of the Labor Law predicated upon violations of §§23-1.5, 1.7, 1.15, 1.17, 1.21, 1 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 and 9.6 of the Industrial Code as against defendant CPM Builders, Inc., because no material, triable issue of fact exists demonstrating these sections of the Industrial Code are applicable in the instant matter; and E. Granting such other, further and different relief as to the court may deem just, proper, and equitable. 3. In brief, Plaintiff Jorge A. Borden claims he was injured on October 16, 2017, while working as a helper for a non-party entity, Premier Drywall Group, Inc., at Defendant Thomas Colicchio’s one-family residence located at 366 Adelphi Street (hereinafter referred to as the “Premises”). 4. As will be demonstrated, no liability for Plaintiff’s injuries lies with either Defendant. I. PROCEDURAL HISTORY 5. Plaintiff commenced this action via filing of a Summons and Complaint on or about October 30, 2017 (see a copy annexed hereto as Exhibit “A”). Issue was joined via filing of a Verified Answer on behalf of both Defendants on or about February 6, 2018 (see a copy annexed hereto as Exhibit “B”). 6. Thereafter, discovery was conducted. Documents exchanged and testimony given are annexed hereto as follows: * Plaintiff’s Verified Bill of Particulars - Exhibit “C”. * Plaintiff’s Deposition Transcript, February 6, 2019 – Exhibit “D”. * Plaintiff’s Deposition Transcript, March 25, 2019 – Exhibit “E”. * Plaintiff’s Deposition Transcript, August 9, 2019 – Exhibit “F”. * Defendant Thomas Colicchio Deposition Transcript – Exhibit “G”. * Defendant CPM Builders Inc. Deposition Transcript – Exhibit “H”. * Affidavit of Defendant Thomas Colicchio – Exhibit “I”. All Plaintiff’s transcripts are filed with Notices transmitting same to Plaintiff’s counsel for execution by the Plaintiff. 7. Defendant Thomas Colicchio, owner of the single family residence which was the site 2 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 of Plaintiff’s accident, made a motion for summary judgment returnable December 17, 2018, seeking an Order granting summary judgment in his favor dismissing all claims based upon Plaintiff’s failure to demonstrate any negligence on his part and based upon the facts that the premises was a one family house and he had absolutely no control over the work performed by the Plaintiff or his employer. 8. Defendant Colicchio’s motion was granted to the extent that all claims made against him pursuant to Labor Law §§240 and 241(6) were dismissed. He was granted leave to renew his motion to dismiss all claims against him pursuant to Labor Law §200 upon completion of discovery (see a copy of the order of the Hon. Kathy J. King entered February 26, 2019 annexed hereto as Exhibit “J”). 9. Plaintiff served his Note of Issue on January 27, 2020 (see a copy annexed hereto as Exhibit “K”). Normally the rules of this court would have required filing this motion on or before March 27, 2020. However, pursuant to Administrative Order 71/20 of the Chief Administrative Judge, dated March 19, 2020, “dispositive motion deadlines” were deferred. Further, pursuant to Administrative Order 78/20 of the Chief Administrative Judge, dated March 22, 2020, all efiling of non-essential papers was forbidden. Thus, the instant motion is timely as it is filed as soon as allowed after efiling of motions was allowed.. II. FACTS DEPOSITIONS OF PLAINTIFF 10. On October 16, 2017, Plaintiff was employed by Premier Drywall Group LLC. (see Exhibit “C”, answer 5). He had worked with the company for a year, beginning in 2016 (see Exhibit “D”, page 41, line 12). He had been assigned to work at the Premises for 3 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 approximately two months prior to the date of his accident (see Exhibit “E”, PP. 180-181, L. 21- 13). 11. Plaintiff’s job was to assist in removing and replacing beams supporting the floors on the second and third floors (see Exhibit “E”, P. 192, L. 12-14). To do so required removing plywood flooring (see Exhibit “E”, P. 193, L. 14-17), which was done by using hammers, drills, a Sawzall and pry bars (see Exhibit “E”, P. 199). 12. The initial floor for which the beams were removed and replaced was the third floor (see Exhibit “E”, P. 191, L. 6-15). To remove and replace the beams required, in part, standing on a scaffold or ladder which was located on the second floor (see Exhibit “E”, PP. 226-227, L. 23-25). 13. Removing and replacing the plywood flooring, and the beams underneath, on the third floor took approximately one month (see Exhibit “E”, P. 246, L. 20-25). Plaintiff’s crew was then instructed to repeat the process on the second floor (see Exhibit “E”, P. 263, L. 3-8). The work continued one to two weeks prior to Plaintiff’s accident (see Exhibit “E”, P. 272, L. 9-14). 14. While some of the plywood which covered the beams on the second floor had been removed, paths were left for the workers to walk on (see Exhibit “E”, P. 295, L. 17-24 and P. 296, L. 13-19). Further, the workers would screw into the floor additional, smaller pieces of plywood, moving to whichever area the workers needed (see Exhibit “F”, P. 392, L. 19-23). 15. Part of Plaintiff’s job was to receive sheets of plywood for use in replacing the old, removed plywood. The new sheets were received through a second floor window, hoisted by a machine on the outside of the building (see Exhibit “E”, P. 277, L. 16-21). Two workers were needed to receive the plywood; one grabbed one end of a sheet, another the other end, and both 4 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 guided the piece of wood through the window (see Exhibit “E”, P. 290, L. 11-18). Both had enough room to stand on flooring which had been left in place (“There was obviously some floor that we were standing on.” See Exhibit “E”, P. 276, L. 13-21). 16. The morning of Plaintiff’s accident, more than twenty sheets of plywood were received in this way (see Exhibit “E”, P. 298, L. 20). The workers took a lunch break and, when they returned, Plaintiff was the first one to walk up the stairs to the second floor. He looked and saw he had a clear path to walk on plywood to retrieve a circular saw (see Exhibit “E”, P. 321, L. 7-12). When he picked up the circular saw, he looked down and saw plywood (Exhibit “E”, P. 325, L. 2 – 6). 17. At that point, the Plaintiff fell from the second floor to the first floor. He remembers nothing of the circumstances – “The only thing I know is that I fell” (see Exhibit “E”, P. 328, L. 21). He did not hear anything (see Exhibit “E”, P. 326, L. 15). He does not remember beginning to fall (see Exhibit “E”, P. 326, L. 21- 24). 18. He later decided that “I stepped on an old piece of plywood and the piece moved and I fell” (see Exhibit “F”, PP. 387-388, L. 25-2). He does not remember when that particular piece of plywood was put in place (see Exhibit “F”, P. 392, L. 11-18). He knows that it was one of the additional pieces of plywood, put down as the workers moved about the room (see Exhibit “F”, P. 392, L. 19-23). It was supposed to be screwed into a beam (see Exhibit “F”, P. 394, L. 14- 20). Indeed, the Plaintiff thought it was screwed into a beam (see Exhibit “F”, P. 401, L. 18-24). AFFIDAVIT OF THOMAS COLICCHIO 19. In support of his initial motion for summary judgment, Defendant Thomas Colicchio executed an affidavit sworn to September 5, 2018 (see Exhibit “I”). In this affidavit, Mr. Colicchio established the following: 5 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 He is the owner of the one-family residence located at 366 Adelphi Street, Brooklyn, New York (Par. 5) Mr. Colicchio retained CPM Builders, Inc. as the general contractor to perform renovation work at the Premises. (See “I” at ¶ 5). CPM Builders, Inc. then retained plaintiff’s employer, Premier Drywall Group, Inc., as a subcontractor. (See “I” at ¶ 5). Mr. Colicchio did not personally perform any work at the subject project located at the Premises. (See “I” at ¶ 6). Mr. Colicchio did not have any materials, supplies, tools, or equipment at the subject project located at the Premises nor did he provide any materials, supplies, tools, or equipment at the subject project located at the Premises. (See “I” at ¶¶ 7 and 8). Mr. Colicchio was not the General Contractor at the subject project located at the Premises. (See “I” at ¶ 9). Mr. Colicchio was not the Construction Manager at the subject project located at the Premises. (See “I” at ¶ 10). Mr. Colicchio was not the Site Safety Manager at the subject project located at the Premises. (See “I” at ¶ 11). Plaintiff was not and has never been employee or in any way affiliated with Thomas Colicchio. (See “I” at ¶ 12). Mr. Colicchio never supervised, directed, or controlled the plaintiff at the subject project located at the Premises. (See “I” at ¶ 13). Mr. Colicchio did not provide the plaintiff with any materials, supplies, tools, or equipment at the subject project located at the Premises. (See “I” at ¶ 14). As to the plaintiff’s accident, Mr. Colicchio had no knowledge of same and the first notice of the alleged accident was the service of the instant lawsuit. (See “I” at ¶ 15). DEPOSITION TESTIMONY OF CPM BUILDERS INC. 20. Thomas Kilcommons, project manager for defendant CPM Builders, Inc. was deposed on October 24, 2019. He testified that CPM Builders Inc., the general contractor for the project, which retained plaintiff’s employer as a subcontractor, provided no direction as to how the Premier Drywall Group workers should do their jobs. His sole comment on the matter came at Pages 49 - 50 his testimony (annexed hereto as Exhibit “H”), to wit: Q: Did CPM Builders provide any direction or supervision of Premier Drywall or their employees on how they performed their day-to-day work at the job site” A: Only in the capacity of making sure that they are following the drawings that were given, so perhaps they framed something incorrectly, in which case we would have to describe how correctly to frame it, that’s a possibility. 6 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 Q: Did Luis ever direct any employees of Premier on how they should perform their individual actions or activities? A: No. Q: Did CPM Builders provide any tools or equipment to Premier to permit Premier to perform their work at this particular job site? A: No. With the exception of perhaps the scaffold that we would have shared at some point but I don’t know ifthat was the case. III. ARGUMENT BOTH DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW §200 CAUSE OF ACTION AND ANY COMMON LAW NEGLIGENCE CAUSES OF ACTION 21. “[S]ection 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site. (Citations omitted) It is well settled that an implicit precondition to this duty is that the party charged with that responsibility ‘have the authority to control the activity bringing about the injury to enable itor correct an unsafe condition. (citations omitted).’” See Rizzuto v. L.A. Wenger Construction Co., 91 N.Y.2d 343, 351, 670 N.Y.S.2d 816, 820 (1998). 22. In the first instance – did either defendant have the authority to control the activity bringing about the injury to enable it - Plaintiff’s claim fails against both defendants because neither had the authority to control his activity. He was a carpenter’s helper – his actions were controlled by the carpenter, Marlin Marenco (see Exhibit “D”, P. 69, Lines 13-17). The affidavit of Thomas Colicchio, Exhibit “I” hereto, establishes in evidentiary form that he never controlled the means by which Plaintiff performed his job. Similarly, the deposition testimony of Thomas Kilcommons establishes that Defendant CPM Builders had no authority to direct Plaintiff’s actions. 23. Mr. Kilcommons’ testimony that CPM Builders could correct Premier Drywall’s 7 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 actions if they deviated from a building plan is not enough to impose liability. "General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the [owner or] contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed." See Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept. 2007]). 24. Further, the second half of the test – correcting an unsafe condition – requires notice that the owner or contractor knew of the condition. “When a premises condition is at issue, a property owner is liable under Labor Law §200 when the owner created the dangerous condition causing the injury or when the owner failed to remedy a dangerous or defective condition of which she or he had actual or constructive notice (citations omitted).” See Chowdhury v. Rodriguez, 57 A.D.3d 121, 128 (2nd Dept. 2008), 867 N.Y.S.2d 123, 129. 25. The testimony of the Plaintiff is that his injury was caused because “I stepped on an old piece of plywood and the piece moved and I fell” (see Exhibit “F”, PP. 387-388, L. 25-2). He does not remember when that particular piece of plywood was put in place (see Exhibit “F”, P. 392, L. 11-18). He knows that it was one of the additional pieces of plywood, put down as the workers moved about the room (see Exhibit “F”, P. 392, L. 19-23). It was supposed to be screwed into a beam (see Exhibit “F”, P. 394, L. 14-20). Indeed, the Plaintiff thought itwas screwed into a beam (see Exhibit “F”, P. 401, L. 18-24). 26. No evidence has been produced by the Plaintiff that either Thomas Colicchio or CPM Builders had any idea that Premier Drywall’s workers were moving small pieces of plywood around the area in which they were working, screwing same into beams, let alone that – on the date of the accident – one of those small pieces was not correctly attached, thus causing 8 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 Plaintiff’s accident. Indeed, neither defendant could possibly know this if even the Plaintiff looked at the area where he was going to walk and thought it was perfectly safe. 27. In an analogous situation, the defendants were awarded summary judgment after a worker fell from a scaffold, having slipped on a previously unobserved substance. In the case Molyneaux v. City of New York, 28 A.D.3d 438, 440, 813 N.Y.S.2d 729 (2nd Dept. 2008) the court held that, to be liable, “Moreover, the owner or contractor must have created or had actual or constructive notice of the defective condition which caused the accident (see Paladino v. Society of N.Y. Hosp., supra at 345; Maggi v. Innovax Methods Group Co., 250 AD2d 576, 578 [1998]). The moving defendants were properly awarded summary judgment on the plaintiffs' common-law negligence and Labor Law § 200 causes of action, since the evidence indisputably showed that the unidentified substance had never been observed before the occurrence of the plaintiff's accident. Thus, the moving defendants could not possibly have had notice of the cause of the accident, nor could they be found responsible for creation of the dangerous condition.” 28. The Plaintiff testified that neither Thomas Colicchio nor an employee of CPM Builders was responsible for attaching the smaller piece of plywood in place. It was one of his co-workers who did that (see Exhibit “F”, P. 393, L. 23-25). This testimony establishes that neither Defendant caused the dangerous condition involved in the instant claim. 29. Further, since Plaintiff does not know when the wood was moved, actual notice cannot be established. 30. Constructive notice cannot be established, because even had both Defendants been standing on the second floor, looking at the area where Plaintiff was injured, they would have seen the same thing Plaintiff did when he looked. If he thought the piece of wood in question 9 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 was properly attached, the Defendants submit that it is impossible for them to know that itwas not and thus a dangerous condition existed. 31. Therefore, Plaintiff’s claims against both Defendants pursuant to common law and Labor Law §200 must be dismissed. IV ARGUMENT DEFENDANT CPM BUILDERS, INC. IS ENTITLED TO SUMMARY JUDGMENT AS TO CLAIMS BASED UPON THE ALLEGED VIOLATION OF LABOR LAW §240 32. In its Bill of Particulars, Plaintiff claims liability pursuant to violation of Labor Law §240 subsections (1), (2) and (3) (see Exhibit “C”. answer 17). 33. Labor Law §240(1) requires appropriate protection to workers using “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, or ropes”. The injuries claimed by the Plaintiff herein are not the result of the use of any such equipment. 34. Labor Law §240(2) applies to requirements for the use of scaffolding or staging. The injuries claimed by the Plaintiff herein are not the result of the use of scaffolding or staging. 35. Labor Law §240(3) applies to requirement that a scaffold be able to bear four times the maximum weight allowed. The injuries claimed by the Plaintiff herein are not the result of the use of scaffolding. 36. "Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross, 81 NY2d at 501).” Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 281-282. 10 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 37. The cynical might note that itwas fall which caused the Plaintiff’s injuries in this case, but the fact is no scaffold, hoist, stay, or ladder was involved. Plaintiff was walking across a flat floor. The protections of Labor Law § 240(1) do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Ross v. Curtis-Palmer Hydro- Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993) 38. In Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 7 N.Y.S.3d 263, (2015), the worker was installing insulation in the ceilings of a newly constructed apartment building. To complete the task, the worker wore stilts that elevated his feet above the concrete floor. The accident occurred when he stepped forward with one foot, while swinging a hammer above his head to affix insulation between the ceiling rafters, and slipped on a thin patch of ice. In holding that Labor Law § 240(1) did not apply, the Court of Appeals found that the accident resulted from a slip on ice, which was a separate hazard unrelated to the elevation risk that necessitated the provision of a safety device in the first instance. Moreover, the accident did not arise out of a difference in elevation. 39. In the instant case, Plaintiff walked across a level floor. There was no height differential. Assuming arguendo that his accident happened the way he claims, the problem was not an elevation related hazard. It was a separate risk based on the fact that one of Plaintiff’s coworkers failed to do his job correctly. 40. In Charles v. City of New York, 227 A.D.2d 429, 642 N.Y.S.2d 690 (2d Dept 1996), the worker was injured when he tripped on some debris and contorted his body in order to avoid falling off an eighth-floor ledge. In holding that Labor Law §240(1) did not apply, the Appellate Division, Second Department found that accident was not the result of an elevation- related hazard, but rather, resulted from a trip and fall on accumulated debris. The plaintiff in 11 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 Charles, supra, was on a ledge eight floors above the ground. This is far higher than the Plaintiff in the instant case. As it was a ledge, there was no floor covering to protect the worker. Floor covering was in place in the instant action. Clearly there was an inherent risk in the Charles, supra, to being near a ledge eight stories off the ground. Still, the court did not find a height related risk – it found a trip and fall risk and dismissed the claim based on Labor Law §240(1). 41. Therefore, the cause of action against CPM Builders, Inc. based upon Labor Law §240(1) must be dismissed. V ARGUMENT DEFENDANT CPM BUILDERS, INC. IS ENTITLED TO SUMMARY JUDGMENT AS TO CLAIMS BASED UPON THE ALLEGED VIOLATION OF SECTION 241(6) 42. In his complaint, the Plaintiff claims violation of Labor Law §241(6)(see Exhibit “A”). However, citation to Labor Law §241(6) in and of itself is insufficient – violations of provisions of the Industrial Code must be made as well. See Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 957, 975 N.Y.S.2d 65, 68 (2nd Dept. 2013). 43. In its Verified Bill of Particulars, the Plaintiff cites violations of Industrial Codes as follows: 23 – 1.5 (a) and (c) 23 – 1.7 (b) (d) (f) 23 – 1.15 23 – 1.16 (a) – (f) 23 – 1.17 (a) – (e) 23 - 1.21(b) and e) 23 - 1.24 23 - 3.2 23 - 3.3 (c) (g) (j) 23 - 5.1 23 - 5.3 23 - 5.9 23 - 9.6 44. Additionally, Plaintiff cites violations of OSHA regulations 1926.451, 12 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 1926.452, 1926.501, 1926.502, 1926.503, and 1926.850(a)(h)(j). 45. For the purposes of this action, citation to the OSHA regulations must be disregarded. “Violations of the Occupational Safety and Health Administration regulations do not form the basis for liability under Labor Law § 241 (6) (Schiulaz v Arnell Constr. Corp., 261 AD2d 247, 248, 690 NYS2d 226 [1st Dept 1999]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 313, 656 NYS2d 295 [2d Dept 1997]).” See Albericci v. Port Auth. of N.Y. & N.J., 55 Misc. 3d 946, 962, 49 N.Y.S.3d 849, 863 (Sup.Ct. Bronx Co. 2017). 46. With respect to the citation to Industrial Codes, the Plaintiff must demonstrate that each is applicable to the facts at hand. If he cannot do so, the code section cited cannot support a claim under Labor Law §241(6). However, “As to Industrial Code § 23-1.5, (defendant) correctly argues that this provision is not sufficiently specific to form a basis for liability under Labor Law § 241(6) (see Opalinski v City of New York, 164 AD3d 1354, 1355, 84 N.Y.S.3d 499 [2d Dept 2018]; Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 937, 914 N.Y.S.2d 203 [2d Dept 2010]).” Wirkus v Cedry LLC, 2019 N.Y. Misc. LEXIS 135, *22-23 (Sup.Ct. Kings Co. 2019). 47. With respect to Industrial Code §23-1.7(b), the defense submits the requirement “Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)”.does not apply to a temporary hole created by the Plaintiff and his coworkers as an integral part of their work. 48. “[T]he defendants and third-party defendants place reliance on the fact that liability will not be imposed where the item causing the injury was an integral part of the floor being constructed, an integral part of the work being performed, or itself constituted a protective 13 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 device (see, Sharrow v Dick Corp., 233 AD2d 858; Kulis v Xerox Corp., supra; Adams v Glass Fab, 212 AD2d 972)….”Lenard v. 1251 Ams. Assocs., 241 A.D.2d 391, 393, 660 N.Y.S.2d 416, 417-418 (1st Dept. 1997). 49. In Harvey v. Morse Diesel Int’l, 299 A.D.2d 451, 750 N.Y.S.2d 117 (2d Dept. 2002), an electrician tripped on a six-inch piece of electrical cable which was on the floor below the ladder she was descending. As part of her job, the worker was required to pull certain cable through a ceiling, cut it and affix it. The accident occurred when the worker was descending a ladder after installing the cable. She tripped over a six-inch piece of cable, the type with which she was working. In holding that § 23-1.7 did not apply, the Appellate Division, Second Department stated that the object on which the worker tripped was an integral part of the work she was performing. 50. Plaintiff may well argue that the case law cited above regarding what constitutes the “integral part” exception specifically refers to Industrial Code §§23-1.7(e)(1) and (2), which require that debris be cleared so as not to constitute a tripping hazard. However, the Defendant herein suggests this is far too narrow a definition of what constitutes “integral.” “Indeed, Shields v General Elec. Co., 3 AD3d 715, 771 N.Y.S.2d 249 (2004) is instructive. There, the Court noted that ‘work that is an 'integral part of the construction contract' and is 'necessitated by and incidental, to the construction . . . and involve[s] [*18] materials being readied for use in connection therewith' is construction work" (id. at 717, quoting Brogan v International Bus. Machs. Corp., 157 AD2d 76, 79, 555 N.Y.S.2d 895 [1990] ["(T)he lack of proximity between the place of accident and the precise location of construction is not dispositive against Labor Law liability for injuries to workers handling construction materials and equipment"]; see also Karwowski [**13] v 1407 Broadway Real Estate, LLC, 160 A.D.3d 82, 87, 73 N.Y.S.3d 30 [2018]; Danielewski v. Kenyon Realty Co., LLC, 2 A.D.3d 666, 667, 770 N.Y.S.2d 97 [2003]). Thus, contrary to defendants'. contention, the process of receiving a delivery of necessary materials for his work and the location where such delivery took place at the time of plaintiff's injury constituted an integral part of the construction project and, therefore, falls within the ambit of section 241 (6) (see Lucas v KD Dev. Constr. Corp., 300 AD2d 634, 752 N.Y.S.2d 718 [2002]; see also Shields, 3 AD3d at 717; Brogan, 157 AD2d at 79).” 14 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 Impoco v Marjam Supply Co.Inc., 2019 N.Y. Misc. LEXIS 915, 51. By the Plaintiff’s own testimony, he and his co-workers moved two or three smaller pieces of plywood throughout the second floor so as to be able to move about safely while replacing the larger pieces of plywood. Replacing the larger pieces of plywood was absolutely an integral part of the job. Doing so required being above the joists and beams in question (as opposed to attempting the job from the first floor). Any suggestion that perhaps the Plaintiff could have done so by hanging from the third floor or via an aerial bucket somehow maneuvered through a window is nothing more than speculation. Further, it is not what the Plaintiff and co-workers chose to do. 52. Therefore – replacing the plywood was an integral part of Plaintiff’s job. He could not do so without standing on other plywood. His claimed source of injury was a piece of plywood integral to performing the replacement. Therefore, since “liability will not be imposed where the item causing the injury was an integral part of the floor being constructed, an integral part of the work being performed”(see Lenard v. 1251 Ams. Assocs. supra) Industrial Code §23-1.7(b) cannot serve as a foundation for a Labor Law §241(6) claim and must be dismissed. 53. With respect to Industrial Code §23-1.7(d), the court in Wirkus v. Cedry LLC., supra, applied a very fact specific analysis. It noted that Industrial Code §23-1.7(d) applied to slippery surfaces, thus slip and fall cases. The plaintiff in Wirkus tripped, not slipped. “Accordingly, the Court finds that Cedry has demonstrated that section 23-1.7(d) is not applicable to the facts herein and, thus, cannot support plaintiff's Labor Law § 241(6) claim.” 54. In the instant case, the Plaintiff did not slip. For the purposes of this 15 of 19 FILED: KINGS COUNTY CLERK 05/05/2020 03:02 PM INDEX NO. 521083/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/05/2020 motion, the Defendants note Plaintiff’s claim that he stepped on a piece of plywood which was not slippery in and of itself. Thus, Industrial Code §23-1.7(d) should not apply and should be dismissed as a foundation for a Labor Law §241(6) claim. 55. Industrial Code §23-1.7(f) applies to “Vertical passage. Stairways, ramps or runways.” It does not apply to the instant case because Plaintiff was not injured on a stairway, ramp or runway. Thus, it should be dismissed as a ground upon which Labor Law §241(6) can be based. 56. Industrial Code §23-1.15 is simply entitled “Safety Railing.” Before describing the safety railing, it states “Whenever required by this Part (rule)” and goes on to describe how the safety railing should appear. The Defendant contends that in a vacuum, without association to the other section which would require it, this section of the code is too vague, should not apply and should be dismissed as a foundation for a Labor Law §241(6) claim. 57. Industrial Code §23-1.16 is entitled “Safety belts, harnesses, tail lines and lifelines.” No instruction is given as to when such devices should be used. The Defendant contends that in a vacuum, without association to the other section which would require it, this section of the code is too vague, should not apply and should be dismissed as a foundation for a Labor Law §241(6) claim. 58. Industrial Code §23-1.17 is simply entitled “Life Nets.” No instruction is given as to when such devices should